Whether, under the facts in this case, the action for the redress of the grievances complained of should be trespass or case, is by far the most important question presented by the record. The case of Nelson v. Bondurant, 26 Ala. 341, is full to the point, that when the contract of hiring contains no express stipulations as to-the treatment of the slave, the owner delegates to the hirer the same right to punish and correct the slave which he himself has; but, if the punishment inflicted by the hirer, when considered with a just regard to aJI the attendant circumstances, is either cruel or barbarous, he becomes a trespasser ab initio, and liable to damages at the suit of the owner. ,
Passing over all consideration of the above principle, it is contended that the plaintiff in this case has precluded himself from maintaining the action of trespass, by accepting hire for the slave for the whole year; for the time which elapsed after the injury complained of, as well as before. The argument is, in substance, as follows : that conceding the hirer, by eruel treatment, armed the owner with power to re-possess himself of-the slave, and thus put au end to the hiring; yet, by accepting hire for the unexpired time, he waived this right, and, by implication, agreed that the hirer had the right to the possession of the slave for the whole year; that the owner not having the right to the possession of the slave at the time of the injury, if he can maintain any action, it is case, and not trespass. This question must depend on the na-*283tare and extent of tbe right which the owner of a 'slave parts with to the hirer.
The leading case in the United States on this question, is Hilton v. Caston, 2 Bailey, 95. That case was precisely like the present in its legal principles, except that the report does not inform us whether the owner received hire for any time after the alleged injury. The action was trespass, and the court of appeals of South Carolina held that it was properly brought. Judge O’Neall, in delivering the opinion of the court, said: “One general distinction between the action of trespass and case is, that when the plaintiff’s right of possession is in reversion, the action must be case and not trespass. But this contemplates that the party has parted for the time with his entire interest in the thing; or that the injury is such an one as only affects the rights of the possessor. If the owner reserves a right in his ‘property, or places it in the hands of another for any qualified purpose, such as carrying or safe keeping, or the use or hire, and it is injured by any immediate and forcible act, destroying or materially injuring the-thing itself, trespass may be sustained.” After admitting that there was no express authority for the application of this rule to personal property, he adds: “If a landlord lease land, and in the lease reserve the trees; and they are cut down by the tenant or a stranger, ho can support trespass. Why ? Because ho has reserved the right. . So, if one grant the use of his real estate for a particular purpose, and it is used for a different one, trespass is the proper remedy. * * * The owner in this case has parted with his dominion over the soil, for a given purpose; but, as to all others, it is reserved; and hence it is that for this abuse of his right he can maintain trespass.”
After a very well considered argument, the judgment of the court was that trespass would lie. See, also, Barclay v. Howell, 6 Peters, 513; Tennent v. Dendy, Dudley’s Law and Equity, 83.
In Spivey v. The State, 26 Ala. 90, 101, this court said: “‘ The property of the owner, in a slave hired or bailed by him to another, is recognized by law. * * * *284The law has established bounds between the interest of the bailor and bailee in the thing bailed.”
Our predecessors have several times quoted the case of Hilton v. Castou approvingly; and they have also expressly asserted, that if the hirer employ the slave in an illegal business, or inflict upon him such cruel punishment as is not within the spirit of the contract of hiring',, the owner may put an end to the bailment, and re-possess himself of his slave. — Nelson v. Bondurant, supra; Rasco v. Willis, 5 Ala. 40; Hogan v. Anderson, 6 Ala. 472; Gillian v. Senter, 9 Ala. 395; Tucker v. Magee, 18 Ala. 99; Smith v. Hooks, 19 Ala. 101; Wilkinson v. Mosely, 24 Ala. 411. Sec, also, 2 Greenl. Ev. § 614; Sanborn v. Coleman, 6 N. H. 14; 9 Bouv. Bacon’s Abr. 455; Siderfin, 438; Cooper v. Willomatt, 1 M. G. & Scott, 672.
We are fully satisfied with the principle settled in Nelson v. Bondurant, and adhere to it. It results, that if the owner had not recéived hire for the whole year, his right to sue in trespass could not be questioned.
In this case, the owner did, in effect, assert his rig-lit to put an end to the hirer’s possession, by retaining the slave after he returned to him. He had, then, under the authority of Nelson v. Bondurant, a right to bring the action of trespass against the hirer at any time afterwards, at least until he accepted the full hire, after the close of the year. The question whether he was entitled to the whole of the hire is not presented by this record, and it is not proper we should consider it. See Rasco v. Willis, supra; Davis v. Ayers, 9 Ala. 292; Martin v. Everett, 11 Ala. 375. The question in this case is only important, as bearing on the plaintiff’s right to maintain trespass.
[2.] After due consideration, we are satisfied that the receipt of the full hire cannot be regarded as a waiver of the owner’s right to maintain the action of trespass. It was certainly not an express -waiver. That it was not an implied waiver, we think, grows out of the mutual interests in the slave which the owner and hirer had under the contract. The hirer had the right to the services of the slave, and the right to inflict on him reasonable correction. If he transcended these bounds, he invaded a right of the *285owner for which he had not bargained; a right which the own er had not parted with. Under the authority of Hilton v. Caston, supra, this reserved right in the owner authorized him to maintain trespass for its invasion. Under this principle, we cannot perceive that the plaintiff’s right of action would have been any the less perfect, if he had permitted the slave to remain with the hirer for the entire year. If he had done so, and had then received full hire, it would not be contended, we apprehend, that this would operate a release of the damages, caused by unreasonable correction or abuse.
In McLane v. Miller, 12 Ala. 643, Miller had hired slaves for the year 1842. In August of that year, the slaves were seized by McLane, who was coroner, and were not afterwards returned to Miller. On a suit for the hire of the slaves, Miller defended on account of the time lost by the slaves in consequence of the seizure by the coroner, and to that extent recouped the damages. He also sued McLane in trespass for taking and carrying away the slaves; and the question was, whether the recoupment of damages by him was an answer to his action of trespass. This court held that it was not; but that he could still “recover for the injury caused by the trespass, having no connection whatever with the loss of time of the slaves.”
In vindication of the correctness of these views, let it be supposed that, during the term for which a slave is let to hire, a third person inflicts on him a permanent injury, or takes his life. 'Will any one contend in such case that the owner could not maintain trespass against the wrongdoer ? On what principle could he maintain this action ? Evidently, because he had not parted with his entire interest in the property. In other words, his right, to this extent, is not that of a remainder-man, which is consequential, but is in the nature of that of a landlord who has parted with only a qualified interest. — Tennent v. Dendy, Dudley’s Law and Equity, 83; Shaw v. Beers, 25 Ala. 449.
The principle settled in Mosely v. Wilkinson, 24 Ala. 411, is entirely unlike this. In that case, it was said, *286that if a slave is hired for a particular service, and is after-wards employed in a different one, this is a conversion, for which .the owner may bring trover; but if, with a knowledge of such conversion, he afterwards receive hire for the entire year, this is a waiver of the conversion. The same principle was again asserted in Wilkinson v. Mosely, at the last term. Now, the conversion complained of in the case cited hinged entirely on the breach of contract, in employing the slave in á service different from that specified in the contract, and not on any alleged actual injury to the slave, as the result of the change of employment. Under the count in trover, no question was or could be raised on the relative perils attending the one or the other service. The conversion was complete on the change of service, and could not be rendered either more or less a conversion, by any conseqent injury or improvement of the actual value of the slave. Whether there was an actual loss, or a permanent injury of the slave, as a consequence of placing her in a less healthy locality, or employing her in a service more dangerous to her life or health, was a question not considered in that case.
In this case, the complaint is that the slave is permanently impaired in value. If this be true, this injury did not expend its force during the year for which the slave was hired, but left him at the end of the year materially less valuable than ho was before its infliction. Its nature was not that of an injury to the possession — a mere constructive loss to the owner — but a real loss in the value of the property itself.
On this subject of implied waiver from the receipt of the entire hire, it may be a question if this is not a two-edged sword. If the owner, without cause, retook and retained the slave after letting him to hire for the year, he thereby forfeited his right to recover any portion of the hire. Sec Givhan v. Dailey, 4 Ala. 336; Martin v. Everett, 11 Ala. 375. Yet, after losing the services of the slave for near or quite half the year, and that loss chargeable to the direct interference of the owner, the hirer voluntarily paid the entire hire. May it not be contended, with *287at least equal plausibility, that this is an admission by the hii’ei1 of the owner’s right to retake and retain the slave? "W e do not, however, decide this question at present.
Should the plaintiff recover in this action, then the question of the receipt of hire for the time after the whipping will become important. Having received the hire, the owner will not be permitted to recover for any consequent loss of the labor of his slave during the year for wliiclf he was hired.
[3.] We cannot, perceive on what principle the defendant was permitted to give in evidence the fact that the slave resisted Carpenter when he undertook to capture him. It does not appear that Goodson, the hirer, was informed of this act of resistance; and, of course, an unknown offense by the slave could not justify excessive whipping, or mitigate the damages caused by it. It was nor a proper means of proving general character. Particular acts are not admissible for this purpose.
[4.] We do not think the court committed any error, in refusing to permit the questions of plaintiff, numbered 2 and 4, to he answered. The conclusions sought to be elicited by them, are not of the class which this witness should have been allowed to draw. Pei’haps, a physician would be heard to give his opinion of the nature and severity of the blows which caused the wales or whelks observable on the slave’s body. A planter, who has simply had the control of slaves, is not necessarily an expert for such a purpose. We “toay further remark, that the character of the whipping — whether reasonable or cruel ■ — was the very question on which the jury had to pass in making up their verdict. This question depends on the “ attendant circumstances,” and is not a simple or collective fact, of which a witness can give direct evidence. It is rather a conclusion to be drawn from facts.
[5.] In thus laying down the rule, we do not wish to deny to the jury the right to draw their own conclusions, based on the evidence, and aided by their observation and experience in such matters. Neither do we deny to the witnesses the right to give their best judgment of the number of stripes which the slave had received, pred*288icated on the marks which he bore. We hold, also, that it was competent to prove the rule of the generality of slaveholders in correcting their slaves, if there be such a rule. See, on these points, Campbell v. The State, 23 Ala. 44; Ala. and Tenn. Rivers R. R. v. Burke, 27 Ala. 535; Wilkinson v. Mosely, 30 Ala. 562.
[6.] The question marked 3 was improper, and the court did right in sustaining the objection to it. The answer could only have shown what the witness had seoiq and could not aid the jury in determining the question of reasonable or cruel whipping.
For the errors above pointed out, the judgment of the circuit court is reversed, the non-suit set aside, and the cause remanded.